quencies in office. When an aspirant succeeds in obtaining office, he finds that it has cost him one of his two years' salary to reach the position; and he is, therefore, powerfully tempted to steal to make up his losses. True, the power of impeachment hangs over him; but he knows that this power is rarely if ever enforced, because his term is likely to expire before the charges could be investigated, if made; and that the people, if aware of his delinquency, will comfort themselves with the reflection that his term will soon be out, and they will replace him by a more honest man. But the new incumbent comes into office under the same circumstances, and liable to the same temptations. Even when the officer is honest, he is often, if not generally, rendered weak and vaccillating. If called upon to execute the law upon influential men, or upon any considerable number of voters, he finds himself placed in this perplexing predicament. If he does his duty, he is almost certain to offend a sufficient number of his own party to defeat his renomination. When his name comes before the convention, every other aspirant will be opposed to him, because they will not wish, if nominated, to have their names associated with his. "He is a good fellow," they will say, "and has strictly done his duty; but he is unfortunate, and cannot be elected. It is useless to nominate him. It would defeat the whole ticket." The result is, that the honest officer fails because he did his duty. Time and oft experience have shown this to be true. The poor officer finds himself placed between two fires. If he does his duty, he is beaten; and if he does it not, it is still the same. He therefore hesitates, temporizes, and makes efforts to compromise, until he finally renders the law itself ridiculous, and destroys, in the minds of the people, all due respect for it. We have seen the effect of these causes upon the action of the national and State executives, and upon the officers of both governments, except the judges of the Federal courts.*

* By the second section of the second article of the Constitution, the President is made commander-in-chief of the militia of the several States when called into the actual service of the United States; but by a provision of the eighth section of the first article, the power to appoint the officers is reserved to the States respectively.

The idea of giving the chief command to the President, and at the same time leaving it in the power of the States to appoint the officers he is required to command, would seem incompatible with due subordination and efficiency. We now see the effects of this State power of appointment in the fact that so many mere politicians are

The influence of party spirit is potently felt in all the ramifications of society, and has most materially affected the administration of justice in our country. Very few men of wealth or of popularity have been convicted of murder, or other serious offence, in the United States. Hamilton, a wealthy man, was convicted and executed some years ago in Kentucky, for the murder of Dr. Sanderson, another wealthy man; and Dr. Webster, a man of literary reputation, suffered in Massachusetts for the murder of Dr. Parkman, who was a wealthy and prominent man. But the instances have been few; and none, so far as known, where the murdered victim was an obscure individual, without friends or influence. Of politicians, no instances of conviction are remembered. Partisan influence is powerful; and of bank and other corporation delinquents, there is not one in a hundred ever punished. Escape is almost, if not entirely, universal.

The effect of the short terms of office, and of the re-eligibility of incumbents, is plainly seen in the general licentiousness of the press. All parties, cliques, and prominent aspirants for im portant positions, have their organs, which are under their control, and but reflect the party bitterness and personal feelings of those who dictate the contents and tone of their editorials. These causes have led to a vast increase in the number of newspapers; but in proportion as the number increases, their character depreciates.

§ 15. An elective judiciary.

The last conservative element in the State Governments has been destroyed by making the judiciary elective. Since this has been done, candidates for seats upon the bench are nomi

appointed to the most important military positions. This was to have been expected. The Governors in whom the power of appointment is vested, hold their offices but for short terms, are eligible for other terms, and of course find it hard to rise above their party friendships and political associations. They will not easily forget the services of those politicians to whose efforts they owe their own positions, and upon whose assistance they rely for further promotion or continuance in office.

But the deplorable result is, that the army must bleed, and the country suffer, for the want of military capacity in these officers. The field of battle is no place for mere political combinations. Nothing but genuine merit can bear the test of that stern and rigid trial.

nated by political conventions; and without such nomination, no candidate could succeed, though he possessed the character and qualifications of Chief Justice Marshall.

The evils of such a theory are not well understood by the great mass of voters, and cannot be stated but in part here. The essence, however, of all the objections against it, consists in taking judicial questions from the proper forum, and, in practical effect, submitting them to the discussion of a crowd. The evils of the theory have not yet fully appeared; but in the progress of time, they will swell to gigantic proportions.

The first result will be to place political demagogues upon the bench; men who, during the canvass, will freely intimate to certain influential parties their opinions upon certain exciting and important judicial questions, in reference to which there exists a great diversity of interests in the community. And when the candidate becomes the judge, he is still eligible for re-election, always an aspirant upon the bench, and always electioneering. A case comes up before him, where the law is clearly one way, and the opinions and interests of the masses. the other way. How is he to decide? and how will a demagogue decide? If he decides against public opinion, he loses his seat. The question is one in which he is directly and personally concerned; and he is practically made a judge in his own case, because the practical result, to him, is the same. In sustaining public opinion, for the time he sustains his own immediate interests; but by the time the next election comes around, public opinion has changed, and he must change with it.

The theory of an elective judiciary is studiously designed to subject judges to the greatest temptations, and their strict integrity to the severest trials, without any practical or efficient check; for when a man without integrity has public opinion to sustain him, he feels pretty safe. The evils of the theory would be manifest to all the world, if the true state of facts could always be known. Suppose, for example, a candidate for a seat upon the bench should pledge himself, in advance, to decide certain judicial questions in a certain way; and suppose, after election, a case involving the principle should come before him, and the lawyer upon the opposite side should propose to discuss the question. The judge, if candid, should say: "Mr. I cannot hear argument upon this question, because it would be

idle to do so. I have pledged myself, in advance, to my constituents, to decide this question against you, and I must keep my pledge to them, though it may be true that you are in the right, and could plainly make it appear. But as the matter now stands, this Court does not, in fact, decide cases itself, but simply records the judgments of public opinion for the time. being. I am sorry for you and your client; but I love myself better than I love the law of this case, and I could not have been elected unless I had made the pledge I did; and I was bound to be elected. That was the great end for which I struggled."*

* The history of England shows conclusively that the administration of justice never can be pure until the judges are made independent. So long as the judges of the English Judiciary were removable by the crown, they were its slaves, with a few noble exceptions. During the reign of Henry VIII., Cromwell "asked of the judges whether, if Parliament should condemn a man to die for treason without hearing him, the attainder could not be disputed? They answered that it was a dangerous question, and that Parliament should rather set an example to inferior courts by proceeding according to justice. But being pressed to reply by the king's express commandment, they said that an attainder in Parliament, whether the party had been heard or not in his defence, could never be reversed in a court of law." It is remarkable that Cromwell was himself the first victim.-(Hallam's Con. His., 28, 29.)

As to the judges under Elizabeth, Mr. Hallam says:

"I have found it impossible not to anticipate, in more places than one, some of those glaring transgressions of natural as well as positive law, that rendered our courts of justice in cases of treason little better than the caverns of murderers. Whoever was arraigned at their bar was almost certain to meet a virulent prosecution, a judge hardly distinguishable from the prosecutor except by his ermine, and a passive, pusillanimous jury."-(Con. His., 138.)

Under James I. the judges were no better. The courts of justice, it is hardly necessary to say, did not consist of men conscientiously impartial between the king and the subject; some corrupt with hope of promotion, many more fearful of removal, or awe-struck by the frowns of power."-(Id., 184.) In the case of Peacham, "the king directed Bacon previously to confer with the judges of the King's Bench, one by one, in order to secure their determination for the crown." The prisoner was convicted, but died in prison.-(Id., 198.)

In some few instances, constituting mere exceptions to the general conduct of the judges, they manifested a noble spirit.

They unanimously declared, when Charles I. expressed a desire that Felton, the assassin of the Duke of Buckingham, might be put to the rack in order to make him discover his accomplices, that the law of England did not allow the use of torture." -(Id., 243.)

In the case of Hampden, there were two of the twelve judges who manifested a most intrepid spirit, namely: Hutton and Croke. Of the latter, Mr. Hallam says: Croke, whose conduct on the bench in other political questions was not without blemish, had resolved to give judgment for the king, but was withheld by his wife,

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But even when the judge is immovable, and above the influence of personal considerations, and always ready and willing to lose his seat rather than stultify himself, he is placed in a very delicate and painful position, where his motives are open to plausible and continued suspicion and reproach. The public newspaper press is generally edited by men who have a little legal learning, (a dangerous thing when just enough to mislead,) and will discuss, in their columns, the decisions of the courts, and condemn or approve, as the supposed opinion of their readers, or their own inaccurate judgments may dictate. Every extraneous and outside influence is brought to bear upon the Court. And not only so, but the judge must necessarily employ much of his time in making political combinations, or he must fail to receive a renomination by the convention of the party to which he himself belongs. Unless he do so, his opponent, not being on the bench, and against whose judicial opinions nothing can be said, because of them nothing is publicly known, (though known to the influential few,) will have greatly the advantage over him in the convention. All his opponent has to do to defeat him, under such circumstances, is to spend about six months' time in bringing out, in different counties, his own particular friends, as aspirants to seats in the convention.

The theory of an elective judiciary not only ultimately, as a general rule, excludes the best men from the bench, and puts political demagogues in their places, but its tendency is to degrade the bar itself. Although district courts are but subordinate tribunals, the judges of these courts have it in their power to favor or oppress particular attorneys to a great extent. When an attorney becomes unpopular with the court, he loses his practice, because parties litigant will not employ him at the

who implored him not to sacrifice his conscience for fear of any danger or prejudice to his family, being content to suffer any misery with him, rather than to be an occasion for him to violate his integrity."-(Id., 251, note.)

This noble woman, greater than her husband, should be had "in eternal remem brance."

As to the judges during the reign of Charles II., "Never were our tribunals so disgraced by the brutal manners and iniquitous partiality of the bench as in the latter years of this reign.”—(Id., 471.)

The independence of the judges was secured by the Act of Settlement. Since then " no judge can be dismissed from office, except in consequence of a conviction for some offence, or the address of both houses of Parliament, which is tantamount to an Act of the Legislature."—(Id., 597.)

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